When Zealous Representation Goes Wrong – A Look at the Rules on Litigation Ethics

Hiring an attorney is often the last resort for a person with some type of dispute with against another. Whether it be a criminal or civil matter, in a state or federal court, an administrative matter, a mediation or arbitration, attorneys are hired, and, expected to represent the best interest of their clients at all times. The ethical Rules of the legal profession demands it. However, attorneys also have conflicting duties. On one hand, although they are expected to fiercely represent their client’s interests, they also, as officers of the court, have duties to the court, adversaries, and third parties.  Attorneys are limited by the Rules of Professional Conduct which are to provide guidance on how these representations should occur. The same Rules that require zealous representation of a client’s legal issue also imposes significant, but important, limitations on the manner of that representation.  Some abusive litigation tactics include asserting non-meritorious claims, providing false evidence to the court, using improper means in gathering evidence, engaging in communications with represented parties, and unlawfully obstructing an opposing party’s access to evidence or witnesses.    This is not an exhaustive list or discussion of all of an attorney’s ethical obligations during litigation, but it serves as a primer on these Rules and provides guidance on how they should be observed.

The Preamble to the Maryland Lawyers’ Rules of Professional Conduct (hereinafter “the Rules”) make it clear that, “as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”[1] However, Comment 9 of the Preamble demonstrates the inherent conflict that exists in the Rules:

“In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Maryland Lawyers’ Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”[2]

As the Preamble demonstrates, attorneys do not have the option of utilizing any and every tactic at their disposal in their efforts to represent their clients zealously. The “by any means necessary” mantra does not apply. Instead, attorneys have to be mindful of other ethical obligations to the court, opposing counsel, and sometimes their own interests.   Articles 3 and 4 of the Rules speak directly to the lawyer’s ability to represent her clients.

Article 3 of the Rules limits the lawyer’s behavior as an advocate. It details the expected behavior when initiating litigation[3], prosecuting or defending the matter[4], making representations to the court on behalf of clients[5], communication and dealings with opposing counsel[6], and communicating with the trier of fact[7]. These Rules are critical to maintaining the reputation of the profession as they serve to ensure to the public that as advocates for their clients, lawyers will do so in a way that is honest and trustworthy, and will not knowingly resort to misrepresentation and deceit to obtain a favorable result for their client.

Similarly, Article 4 of the Rules seeks to maintain the integrity of the profession but extends the requirement of truthful communications beyond the attorney-client relationship. Specifically, the Rules seek to guide the lawyer on appropriate behavior while advocating for their client and dealing with non-lawyers or a trier of fact. The Rules guide the lawyer on communication to third parties while representing their clients[8], communication with those who are represented by counsel[9], how to interact with unrepresented individuals[10], and requiring the lawyer to respect the rights of individuals[11]. The Rules delineated in Article 3 seek to prevent a lawyer from gaining an unfair advantage in litigation by misrepresenting the facts or bullying non-lawyers and the unrepresented. Especially by dishonest means such as fraud, deceit or misrepresentation.

It is well established and generally understood that a lawyer is expected to be truthful at all times. Comment 2 of the Preamble recognizes that “as [a] negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”[12] These “honest dealings” are critical to ensure that the judicial system works and the Rules identify when this honesty is not only expected, but required, in Rules 3.3, 4.1 and 4.2. Each Rule is briefly discussed below.

Under Rule 3.3, a lawyer must show candor toward the tribunal. Specifically, the Rule states that a lawyer shall not knowingly: 1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 3) offer evidence that the lawyer knows to be false.”[13] In other words, a lawyer is prohibited from knowingly lying to the court or anyone else. And when a lawyer discovers that a communication to the court is untrue, the lawyer needs to correct the statement. Even if the statement and the correction are at odds with his client’s interests.

Rule 4.1 of the Rules prevents a lawyer from “knowingly make a false statement of material fact or law to a third person or failing “to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client[14] As a result, the Rules also bar lawyers from using misleading anyone when representing the interests of her client. Furthermore protecting the integrity of the profession, the Rule also prohibits a lawyer from assisting clients commit any crime, or scheme that involves dishonesty.

Finally, Rule 4.2 prevents a lawyer from “communicat[ing] about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has consent of the other lawyer or is authorized to do so by law or court order.”[15] The purpose of this Rule is to prevent the overzealous lawyer from improperly gaining a competitive advantage by direct communication with an unrepresented party who without the assistance of their counsel, may unknowingly, speak against their own interest.

These select Rules are designed to guide lawyers on the appropriate methods of zealous representation. Or at a minimum, these Rules can also define the appropriate boundaries. Stepping outside of these boundaries can, and, will lead to significant negative consequences for not only the lawyer but her client as well.

Rule Enforcement: Court Action, The Disciplinary Process, and Mixter

So what happens when a lawyer violates the Rules discussed above or any of the Rules while representing a client during litigation? There are two modes of enforcement:  judicial action which is addressed by the court during the course of the underlying litigation or action during the disciplinary process.

During litigation, judges have broad discretion in dealing with lawyers who behave badly. If the court finds that a lawyer has violated the Rules the court can: 1) hold the lawyer in contempt of court, 2) limit the scope of the litigation, 3) bar the admission of certain evidence, 4) shorten litigation timelines, or impose economic or other sanctions upon the offending lawyer. These can be imposed sua sponte by the court or at the request of opposing counsel.  Any of these actions should put any lawyer on notice that their behavior is inappropriate and should be discontinued.  Additionally, depending on the sanction, the action could in fact jeopardize the interest of the client the lawyer was advocating for in the first place.

A lawyer may face enforcement by both the courts and the disciplinary agency.  In February 2015, the Court of Appeals of Maryland, in the matter styled Attorney Grievance Commission of Maryland v. Mixter, found that disbarment was the appropriate sanction for an attorney who made copious knowing and intentional representations to courts, parties and witnesses, and determined that such intentional misrepresentation demonstrated a lack of truthfulness and honesty which is prejudicial to the administration of justice and brings disrepute to the legal profession.[16]  The Court held that Mixter made “hundreds of misrepresentations without remorse or attempt to rectify his transgressions and found that he violated several of the Rules.[17]  The Court found that Mixter violated several of the Article 3 and Article 4 Rules outlined above. Specifically, the Court found Mixter in violation of Rules 3.2, 3.3, 3.4, 4.1 and 4.4 in addition to Rules 5.3, 8.1, and 8.4[18] The Court found that Mixter knowingly misrepresented facts to the court and failed to correct them by repeatedly representing 1) that “out-of-state witnesses are subject to the jurisdiction of Maryland courts”, 2) that valid subpoenas were issued and properly served”, the actual dates that service was made 3) that he had “made good faith efforts to resolve discovery attempts prior to filing motions”, and 4) that opposing parties or non-party witnesses had refused to respond to his efforts”.[19]  The Court found that these violations were not isolated to one case and that they happened on dozens of occasions.  The Court reasoned that Mixter “knew that he was making misrepresentations to numerous courts, parties and witnesses” and therefore violated the Rules.

The Court found similar acts of improper and overzealous representation on the part of Mixter in their 153 page opinion.  Although disbarment is rare for a single act that leads to finding of a violation of an Article 3 or Article 4 violation, lawyers should understand that practices such as these not only bring disrepute to the legal profession, but depending on the action taking by the trial courts, could derail their client’s case and can have serious consequences. Although every lawyer wants to zealously represent their clients, it must be done in a matter that is consistent with the Rules and their obligations as an officer of the Court.

 

[1] Comment [2] to the Preamble of the Maryland Lawyers’ Rules of Professional Conduct.

[2] Comment [9] to the Preamble of the Rules.

[3] Conduct Rule 3.1 Meritorious Claims and Contentions.

[4] Rule 3.2 Expediting Litigation.

[5] Rule 3.3 Candor Toward the Tribunal.

[6] Rule 3.4 Fairness to Opposing Party and Counsel.

[7] Rule 3.5 Impartiality and Decorum of the Tribunal.

[8] Rule 4.1 Truthfulness in Statements to Others.

[9] Rule 4.2 Communication with Person Represented by Counsel.

[10] Rule 4.3 Dealing with Unrepresented Person.

[11] Rule 4.4 Respect for Rights of Third Persons.

[12] Comment [2] to the Preamble of the Rules.

[13] Rule 3.3 Candor Toward the Tribunal.

[14] Rule 4.1 Truthfulness in Statements to Others.

[15] Rule 4.2 Transactions With Persons Other Than Clients.

[16] Attorney Grievance Commission of Maryland v. Mixter, Misc. Docket AG No. 7, Sept. Term, 2013. TDR No. 15-0202-20.

[17] Id.

[18] Id.

[19] Id.

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Attorney Trust Accounts and Rule 1.15

Most people know that that stealing money is wrong – both morally and legally. And likewise, attorneys know (or should know) that when acting as a fiduciary, misappropriation – the unauthorized use of funds that belong to a client or third party – is a huge no-no and a disbarrable offense. However, even with this knowledge, attorneys are often disciplined for Rule 1.15 Safekeeping of Property violations. 1

Unfortunately, trust account management is not a subject that is taught in law school. Therefore, many attorneys are learning about their fiduciary responsibilities through on-the-job training. This training may include instances of issues that may rear its ugly head in a few forms:

Reckless Behavior
Reckless or intentional misappropriation is more obvious. Some attorneys believe that “borrowing” entrusted funds – even for a short period of time – is appropriate. Or, in some instances, attorneys believe that if they have sufficient funds in their operating account or, if they have overdraft protection, that this behavior is acceptable. Simply put, it is not. This is the essence of misappropriation and is considered an act of “moral turpitude” by most disciplinary courts. It is a clear violation of Rule 1.15(a).

Overdrawn Accounts
Attorneys are experiencing overdrafts on their trust account and Maryland Business and Occupations and Professions Article Rules 16-605 and 16-610(b)(1)(B) requires financial institutions to notify Bar Counsel’s office of an overdraft of any attorney trust account. When this occurs, Bar Counsel, by statute, is authorized and required to investigate the circumstances surrounding the overdraft. Of special note is that the Maryland Business and Occupations and Professions Article Rule 16-606.1, enacted January 1, 2008, requires – among other things – attorneys to perform a monthly reconciliation of their attorney trust account and sets forth the types of records that an attorney should keep.

Negligence
Intentional or negligent misappropriation occurs when attorneys are not paying attention to their trust account and for a number of reasons, entrusted funds are invaded. Examples include:

  1. Not having enough money in the attorney trust account to account for credit card fees or banking fees;
  2. Relying on checks provided by clients that have “insufficient funds” and failing to reconcile the attorney trust account prior to writing checks against those funds;
  3. Falling victim to internet scams;
  4. Trusting employee(s) that misuse entrusted funds.

These instances can all be avoided with clear banking practices and proper oversight by the responsible attorney. Some attorneys will claim that they do not have the accounting or bookkeeping skills to manage their accounts and that is why these instances of negligent acts occur. Unfortunately, this rationale will not protect the responding attorney from disciplinary action. The Article 5 Rules set forth that an attorney is responsible for the acts of employees or agents of the lawyer. See Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants). If however, an attorney feels that they cannot properly manage their trust account they should seek the assistance of a professional bookkeeper, certified public account, or office manager to assist with these accounting tasks. And even then, the attorney is still responsible for the oversight and management of the account.

Bad Record Keeping
In addition to the negligent acts described above, attorneys also find themselves violating Rule 1.15(a), which requires attorneys to maintain records of all receipts and disbursements from their attorney trust account for at least five (5) years after the transaction was made. Again, this is a rather simple requirement and violations can be avoided with a review of the relevant rules, clear banking practices, and attorney oversight.

Advanced Fees v. Flat Fees
Attorneys historically have misunderstood or misused flat fees in practice. Rule 1.15(c) requires attorneys to maintain unearned fees in an attorney trust account unless the client gives “informed consent, confirmed in writing” to an arrangement that allows the attorney to deposit funds into an operating account. Without this language, which should ideally be in the fee agreement, an attorney may be inadvertently misappropriating unearned fees while believing that they were entitled to the funds because it was characterized as a “flat fee” rather than an advanced fee.

Honest Mistakes
Things happen. But even the most diligent attorney who is familiar with the rules on attorney trust accounts can run afoul of the rules. Some common honest mistakes include:

  1. Depositing funds into the wrong account;
  2. Keeping earned funds in trust too long; and
  3. Not titling account properly as required by Maryland Business and Occupations and Professions Article Rule 16-606.2

While this list is certainly not exhaustive, hopefully it will give you an idea of some of the mistakes that can occur. However, if an attorney has been diligent with their attorney trust account management responsibilities, these mistakes should be simple to correct to bring the attorney back into the land of compliance.

Dolores Dorsainvil is a Senior Staff Attorney at the D.C. Office of Bar Counsel where she investigates, and where necessary, prosecutes cases of ethical misconduct against District of Columbia lawyers. You may read more about Ms. Dorsainvil by visiting her website at www.doloresdorsainvil.com.


1 Rule 1.15 states, “(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the lawyer and shall be preserved for a period of at least five years after the date the record was created.

(b) A lawyer may deposit the lawyer’s own funds in a client trust account only as permitted by Rule 16-607 b.

(c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the lawyer’s own benefit only as fees are earned or expenses incurred.

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property.

(e) When a lawyer in the course of representing a client is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall distribute promptly all portions of the property as to which the interests are not in dispute.”


2 An attorney or law firm shall maintain each attorney trust account with a title that includes the name of the attorney or law firm and that clearly designates the account as “Attorney Trust Account”, “Attorney Escrow Account”, or “Clients’ Funds Account” on all checks and deposit slips. The title shall distinguish the account from any other fiduciary account that the attorney or law firm may maintain and from any personal or business account of the attorney or law firm.

Is Attorney Blogging a First Amendment Issue?

With so many social media platforms, more and more lawyers are finding avenues to use these platforms in their business models.[1] The Virginia courts, in the case of Hunter v. Virginia State Bar,[2] were presented with the constitutional issue of whether it was an attorney’s first amendment right to publish successful case results in a blog post on his law firm’s website, even without the disclaimer required by the Virginia State Bar Rules of Professional Conduct.[3]  The court had to consider whether the attorney’s blog website was commercial speech and whether an attorney can discuss publicly available information related to a client matter without the client’s consent. In his blog titled “This Week in Richmond Criminal Defense,” the majority of Mr. Hunter’s blog posts discussed favorable outcomes[4] received in his clients’ matters, without any disclaimers that puts case results in a context that is not misleading and explains that there are no guarantees and that each case’s outcomes depends on a number of factors. See Virginia State Bar Rule of Professional Conduct 7.1(b).  The Virginia State Bar initiated an investigation and concluded that Mr. Hunter violated the rules pertaining to lawyer advertisement, specifically, Virginia Rules of Professional Conduct 7.1, 7.2,[5] because they deemed that his advertisements were misleading and did not provide the necessary disclaimers. The Virginia State Bar also concluded that as a result of discussing client matters and revealing information that was either embarrassing or detrimental to the client without the client’s consent was a violation of Virginia Rule of Professional Conduct Rule 1.6.[6] In his defense, Mr. Hunter stated that the blog was not a legal advertisement but rather was political speech concerning the judicial system and that it was important to use the real names of his clients so as to provide his audience with an accurate description of what transpired in the legal matter. Mr. Hunter defended against the Virginia Rule of Professional Conduct 1.6 charge and stated that the information that he posted was public information that had already been disseminated.  The Virginia State Bar imposed a public admonition with terms including a requirement that Hunter remove “case specific” content from his blog and post a disclaimer as required under Virginia Rule of Professional Conduct 7.1(b). Hunter appealed to the Circuit Court for the City of Richmond and they affirmed the Third District Committee’s finding that under Virginia Rule of Professional Conduct 7.2(b), Hunter was required to post disclaimers when publishing case results. It, however, reversed the District Committee’s finding that he violated Virginia Rule of Professional Conduct 1.6 by posting embarrassing and detrimental information about his clients without their consent. The Circuit Court held that the application of Virginia Rule of Professional Conduct 1.6 violated Hunter’s First Amendment right to free speech.  The matter then went to the Supreme Court of Virginia and, in a 5-2 decision, the court affirmed the Public Admonition with terms imposed on Hunter for failing to publish the required disclaimers and rejected Hunter’s first amendment argument and held that his blog post was commercial speech. The Court did not make a finding of a violation of Virginia Rule of Professional Conduct 1.6.[7]  After having filed a petition for a writ of certiorari to the U.S. Supreme Court that was ultimately denied, Mr. Hunter entered into a consent order with the bar reinstating the public admonition with terms.

Social media is a great marketing tool that, if used ethically, has many rewarding benefits. Lawyers however, must be mindful of the pitfalls associated with social media that could result in the violation of the ethical Rules. In Maryland, the rules governing lawyer advertising are straight forward. Maryland Rule 7.1 dictates lawyers must only make truthful statements that are not misleading in their advertisements and that these statements cannot create an unjustified expectation about the results that the lawyer can achieve for a prospective client.[8] For example, a statement such as “I’ve won every jury trial I’ve ever had” may be technically true but in order for a prospective client to appreciate a lawyer’s skill-set it would be important to know that the lawyer has only had 3 jury trials. Similarly, it is a violation of Maryland Rule of Professional Conduct 7.5[9] to create a Facebook page where you state your firm name, “Dorsainvil & Associates” if in fact you are a solo practitioner and do not have any associates within your firm.

Although the Hunter case didn’t make a finding of a 1.6 violation, an attorney in Maryland must be mindful that, when making posts to various social media platforms, they may expose confidential or proprietary information in violation of Maryland Rule of Professional Conduct 1.6.[10] This is especially common when a lawyer posts specific information about a recent success in a matter such as a favorable verdict, or when a lawyer shares an anecdote about their challenges either in court, with opposing counsel, or with a difficult client. These types of posts are unauthorized disclosures that violate a lawyer’s duty to keep a client’s matter confidential as required under Rule 1.6 which states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or unless there is an exception to the Rule.

So as you take to these social media platforms, be mindful of the Rules of Professional Conduct as lawyer advertising is deemed commercial speech which the bar can regulate.


[1] Lawyers are using platforms like LinkedIn, Twitter, and Facebook to share information about updates in their law firm.

[2] 285 Va. 485, ___ S.E.2d ___ (2013).

[3] Virginia State Bar Rule of Professional Conduct 7.1(b) states, “[a] communication violates this rule if it advertises specific or cumulative case results, without a disclaimer that (i) puts the case results in a context that is not misleading; (ii) states that case results depend upon a variety of factors unique to each case; and (iii) further states that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer. The disclaimer shall precede the communication of the case results. When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.”

[4] In these criminal matters, Hunter’s clients were either: 1) found not guilty, 2) had their charges reduced or dismissed, or 3) entered into a plea bargain to an agreed upon disposition.

[5] The amendments effective July 1, 2013, deleted Rule 7.2.

[6] Confidentiality of Information.  Rule 1.6(a) states, “[a] lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).”

[7] In her majority opinion, Justice Cleo E. Powell reasoned that Hunter’s posts all dealt with public information about his cases that had concluded.

[8] Rule 7.1(a) states, “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or
(2) is likely to create an unjustified expectation about the results the lawyer can achieve….”

[9] Rule 7.5 Firm Names and Letterheads states, “(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.”

[10] Rule 1.6(a) states, “[a] lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).”

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